State of emergency – Global Legal Monitorhttp://blogs.loc.gov/global-legal-monitor
Global Legal MonitorThu, 24 May 2018 16:30:43 +0000en-UShourly1https://wordpress.org/?v=4.9.5France: State of Emergency Officially Ends as New Security Measures Come Into Forcehttp://loc.gov/law/foreign-news/article/france-state-of-emergency-officially-ends-as-new-security-measures-come-into-force/
Wed, 29 Nov 2017 14:30:04 +0000http://loc.gov/law/foreign-news/?post_type=glm_article&p=12901(Nov. 29, 2017) The state of emergency declared by the French government following the Paris terrorist attacks of November 13, 2015, and renewed several times since, finally expired on November 1, 2017. (Jean-Baptiste Jacquin & Julia Pascual, Deux ans après, la fin de l’état d’urgence [Two Years Later, the End of the State of Emergency], LE MONDE (updated Nov. 2, 2017); Nicolas Boring, France: Final Extension of State of Emergency, GLOBAL LEGAL MONITOR (Aug. 24, 2017); Nicolas Boring, France: State of Emergency Extended to July 2017, GLOBAL LEGAL MONITOR (Dec. 29, 2016).) However, several aspects of the state of emergency were made permanent in Law No. 2017-1510, promulgated on October 30, 2017. (Loi No. 2017-1510 du 30 octobre 2017 renforçant la sécurité intérieure et la lutte contre le terrorisme [Law No. 2017-1510 of 30 October 2017 Reinforcing Domestic Security and the Fight Against Terrorism] (Loi No. 2017-1510), LEGIFRANCE.)

Principal Provisions of Law No. 2017-1510

The new security law has four main points. The first allows local prefects to establish “protection perimeters” around places and/or events deemed particularly vulnerable to a terrorist attack, such as concerts or sports events. (Id. art. 1.) Individuals and vehicles entering such “protection perimeters” could be subject to searches and could be denied entry if they refuse to be searched. (Id.; Renforcer la sécurité intérieure et la lutte contre le terrorisme [To Reinforce Domestic Security and the Fight Against Terrorism], GOUVERNEMENT.FR (French government website) (updated Oct. 31, 2017).)

The second part of the new law allows the government to close places of worship where terrorism, hatred, or discrimination is promoted. (Loi No. 2017-1510, art. 2.) A government decision to close a place of worship under this provision must be preceded by at least 48 hours’ notice, so as to allow the religious organization responsible for the place of worship to challenge the decision before an administrative court. (Id.)

The third main point of Law No. 2017-1510 is to allow the government to impose certain monitoring measures on individuals who present a “particularly serious” threat and who are in regular contact with organizations or individuals who engage in or promote terrorist activities. (Id. art. 3.) These monitoring measures, which are ordered for periods of three months, are meant to be less constraining than house arrest but to nonetheless allow the government to keep track of the individual(s) in question. (Renforcer la sécurité intérieure et la lutte contre le terrorisme, supra.) Monitoring measures may include prohibiting the subject from leaving a certain geographic area and requiring the subject to report to the local police station once a day. (Loi No. 2017-1510, art. 3.)

The fourth principal provision of the new law allows local prefects, upon authorization from a judge, to order law enforcement officials to conduct searches of any place when there is a “serious reason to believe” that a terrorism suspect frequents that place. (Id. art. 4.)

Miscellaneous other provisions include authorizing the government to investigate public servants who are in a position of authority and who are at risk of becoming radicalized, adapting French law on the use of passenger name records for travelers, and clarifying the rules for the interception of wireless communications. (Renforcer la sécurité intérieure et la lutte contre le terrorisme, supra.) Another noteworthy provision makes it a crime, punishable by up to 15years of prison time, for a person who has authority over a minor to make or encourage that minor to engage in terrorism. (Id.; Loi No. 2017-1510, art. 10.)

]]>France: Final Extension of State of Emergencyhttp://loc.gov/law/foreign-news/article/france-final-extension-of-state-of-emergency/
Thu, 24 Aug 2017 19:14:41 +0000http://loc.gov/law/foreign-news/?post_type=glm_article&p=12086(Aug. 24, 2017) On July 6, 2017, the French Parliament adopted, in a 137-13 vote of the General Assembly, an extension of the current “state of emergency” for the sixth time since November 2015. This extension entered into force on July 15 and is set to expire on November 1, 2017. (Le Parlement vote la prolongation de l’état d’urgence en France [Parliament Adopts Extension of State of Emergency in France], FRANCE 24 (July 6, 2017).) President Emmanuel Macron stated that this would be the final extension of the state of emergency in France. (Roland Gauron & Alexis Feertchak, EN DIRECT – Revivez le discours d’Emmanuel Macron devant le Congrès à Versailles [LIVE: Relive the Speech of Emmanuel Macron Before the Congress in Versailles], LE FIGARO (July 3, 2017).)

The French state of emergency is considered “one of the broadest grants of emergency powers in a modern democratic constitution.” (Makeever, supra, at 19.) Its current application is criticized by many, including organizations such as Amnesty International France, Human Rights Watch, and attorney and judge unions that characterized it as “toxic” for France, “inefficient,” and “counter-productive.” (Etienne Jacob, État d’urgence: chronique d’un dispositif contesté [State of Emergency: Chronicle of a Disputed Device], LE FIGARO (July 3, 2017).) It has also been criticized by the United Nations Committee for Human Rights, which argued that “these measures do not seem to adjust to the fundamental principles of necessity and proportionality.” (UN Rights Experts Urge France to Protect Fundamental Freedoms While Countering Terrorism, Office of the United Nations High Commissioner for Human Rights website (Jan. 19, 2016).)

Prepared by Marie-Philippe Lavoie, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.

On April 18, two days after the approval of a referendum to expand the powers of the president, the Grand National Assembly, Turkey’s parliament, extended the country’s nine-month state of emergency by another three months, to begin on April 19, 2017. (Decision on Extending the State of Emergency, Karar [Decision] No. 1139, RESMI GAZETE [OFFICIAL GAZETTE], No. 30042 (Apr. 18, 2017) (in Turkish).)

A few days before the decree-laws were issued, moreover, on April 26, in “the second large-scale purge since the narrow victory of a 16 April referendum giving President Tayyip Erdogan sweeping powers,” more than“9,000 police personnel were suspended and another 1,000 detained for alleged links to the cleric Fethullah Gulen,” who is regarded by the government as the motivating force behind the failed coup. (Turkish Authorities Expel More Than 3,900 from Civil Service in Latest Purge, MEE [Middle East Eye] (last updated May 1, 2017).) An announcement on the General Directorate of Security website put the number of fired police officers at 9,103 and also cited ties to Gulen as the reason for the action. (26.04.2017, General Directorate of Security website (last visited May 8, 2017) (in Turkish); List of Policemen Revealed (26 April 2017), ΚΑRΑR (in Turkish).) BBC News reported that in addition to the 1,009 persons detained on April 26, “arrest warrants were issued for another 3,224 people, as part of a police operation across Turkey’s 81 provinces.” (Turkey Suspends More than 9,000 Police Officers over ‘Gulen Links,’ BBC NEWS (Apr. 27, 2017).)

Decree Law 689

DL 689 is in seven articles and has five appended lists. It includes measures on: civil servants to be removed from office (art. 1 & List 1); civil servants to be removed from lists included with previous decrees that had mandated their dismissal (art. 2 & List 2, with names of 236 persons to be reinstituted); institutions and organizations to be closed on grounds of being terrorist organizations or a threat to national security (art. 3(1) and List 3, with 47 closures: 14 associations, 1 newspaper, 1 magazine, 13 healthcare establishments, & 18 foundations); institutions and organizations to be re-opened after having been closed under the provisions of previous decree-laws (art. 3(3) & List 4, with five associations); and dismissal from their special status of students studying abroad found to belong to or be in contact with groups active against the national security of the state or terrorist organizations (art. 4 & List 5, with 59 students). (DL 689.)

Under DL 689, 3,940 persons were dismissed from the civil service (including 201 from the Ministry of Religious Affairs; 1,127 from the Ministry of Justice and related institutions, some of whom were prison guards and clerks; and 216 from the Ministry of Health and related organizations); the military (478 from the Land Forces Command of the Ministry of National Defense, 447 from the Air Force Command, and 141 from the Naval Forces Command); and academia (484 persons). (Id., List 1.)

It may be noted that Decree Law 688 (DL 688), published on March 29, 2017, also provided for the listing of certain personnel on some previous Decree Law lists on removals and dismissals to cease to be valid from the date of publication of the given Decree Law, and for such personnel to be paid pursuant to their financial and social rights from the date they were removed from office up to the date they assume a new position. However, these personnel cannot claim any compensation because of their having been removed from public service, DL 688 states. (Decree Law on the Taking of Some Measures Within the Scope of the State of Emergency, KHK 688, RESMI GAZETE, No. 30022 (Mar. 29, 2017) (in Turkish).) The list attached to DL 688 has 416 names. (Id.)

Decree Law 690

Decree-Law 690 (DL 690) is “package” or omnibus legislation in 77 articles; it amends a number of laws, including the earlier emergency Decree-Law No. 685. (Decree Law on the Implementation of Certain Measures Under the State of Emergency, KHK No. 690, RESMI GAZETE, No. 30052 (Apr. 29, 2017).) The seven chapters of the law cover measures on the judiciary, national defense, domestic security, social security measures, the Commission on Examination of State of Emergency Procedures, media service providers, and miscellaneous matters. For example,

a new article 27/A added to the Population Services Law is on the registration of divorce decrees supplied by foreign judicial or administrative authorities in Turkey’s population register (DL 690, art. 4; Population Services Law, Law No. 5490 (Apr. 25, 2006, as amended), MEVZUAT (in Turkish));

additional article 1, on the seizure of vehicles used in the crime of smuggling of migrants, is added to the 2013 Foreigners and International Protection Law (DL 690, art. 6; Law on Foreigners and International Protection, Law No. 6458 (Apr. 4, 2013), Ministry of Interior website (unofficial English translation; Turkish text (as amended), available at MEVZUAT);

a sentence is added to the end of article 74(2) of the Village Law, which is on the appointment of village security guards, stating that security guards who have reached 55 years of age will be dismissed from their duties (DL 690, art. 27; Village Law, Law No. 442 (Mar. 18, 1924, as amended), MEVZUAT (in Turkish)), and the provisions in certain other laws, such as the Law No. 5335 on the Amendment of Certain Laws and the Social Insurance and General Insurance Law No. 5510, are also amended in connection with security guards;

bans are imposed on chat, friendship, and dating programs transmitted via radio and broadcast services, including such programs that market or advertise food supplements and similar products, and on the promotion, sale, and marketing of offers by telecommunications services (through, e.g., locally dialed numbers or specialized content services numbers) of rewards or prizes via competitions, lotteries, drawings, and other similar means, which mislead the public or cause unwarranted gain. (Turkish Authorities Expel More Than 3,900 from Civil Service in Latest Purge, supra; DL 690, art. 60, adding a new ¶ 4 to art. 8 of the Law on Radio and Television Establishment and Broadcast Services, Law No. 6112 (Feb. 15, 2011, as amended), MEVZUAT (in Turkish).) Deputy Prime Minister Numan Kurtulmus stated in March that the dating programs “do not fit in with Turkish traditions and customs” and that “[th]ere are some strange programmes that would scrap the institution of family, take away its nobility and sanctity.” (Turkish Authorities Expel More Than 3,900 from Civil Service in Latest Purge, supra.)

The Commission on Examination of State of Emergency Procedures, comprising seven members who will serve two-year terms, was founded “to evaluate and make decisions about applications related to operations made within the scope of the decree laws.” (Appeals Commission Established for State of Emergency Actions, HURRİYET DAİLY NEWS (Jan. 23, 2017).) The Ministries of Justice and of the Interior and the Supreme Board of Judges and Prosecutors may submit applications to the Commission concerning removals or dismissals from public service and other institutions and the closure of associations, foundations, private radio and television organizations, newspapers and magazines, news agencies, publishing houses, and distribution channels. (Id.) Persons removed, dismissed, or suspended from their jobs as a result of the state of emergency “may also apply to the institution where they last worked” for reinstatement. (Id.; European Commission for Democracy Through Law (Venice Commission), Turkey: Emergency Decree Law No KHK/685 on the Creation of the Inquiry Commission, Opinion No. 872 / 2016 (Strasbourg, Feb. 21, 2017), CDL-REF(2017)014 (English translation of Decree-Law 685).)

]]>Gambia: State of Emergency Liftedhttp://loc.gov/law/foreign-news/article/gambia-state-of-emergency-lifted/
Mon, 30 Jan 2017 19:00:44 +0000http://loc.gov/law/foreign-news/?post_type=glm_article&p=9949(Jan. 30, 2017) On January 24, 2017, Gambia’s legislature ended the state of emergency in the country and rescinded the extension of executive power that had been granted to former President Yahya Jammeh. Jammeh had lost an election in December 2016 to Adama Barrow, but for a time refused to leave office and hand over control of the government. Barrow was initially sworn in on January 19 in Senegal, but entered Gambia after Jammeh agreed to step down and went to Equatorial Guinea on January 21. (Justin Cosgrove, Gambia Lawmakers End State of Emergency, PAPER CHASE (Jan. 25, 2017); Gambian Lawmakers Revoke Jammeh’s State of Emergency, AFRICA NEWS (Jan. 24, 2017).)

Under the Gambian Constitution, a state of emergency can be declared by the president for the whole country or a part of it. Although the president can establish a state of emergency for only seven days, if the National Assembly concurs with a two-thirds vote, the emergency state can last up to 90 days. The National Assembly also has the power to end a state of emergency. (Constitution of the Republic of the Gambia (in force from Jan. 1997, as last amended 2001), art. 34, World Intellectual Property Organization website (click on link to download).) In the recent situation, the National Assembly did concur, and if the political situation had not been resolved, the state of emergency could have been in force for three months. (Gambian Lawmakers Revoke Jammeh’s State of Emergency, supra.)

Jammeh had said that the reason a declaration of a state of emergency was needed was “to prevent a constitutional crisis and power vacuum pending the determination of the petitions at the Supreme Court and the application for an injunction against swearing in Mr. Adama Barrow, until the Supreme Court decides on the 1st December 2016 Presidential Election results.” (Gambian Lawmakers Revoke Jammeh’s State of Emergency, supra.) He also said that there had been extensive foreign interference in the election and cited intervention in “the internal affairs of The Gambia and the unwarranted hostile atmosphere threatening the sovereignty, peace, security and stability of the country.” (Gambia’s Yahya Jammeh Declares State of Emergency, supra.)

Regional and International Responses

Jammeh eventually left office and the country following considerable regional pressure. Troops from Senegal, which surrounds Gambia on three sides, had entered the country, prepared to enforce the election results. (Bryony Jones, Ben Westcott, & James Masters, Gambia: Defeated Leader Jammeh Leaves Country After Election Loss, CNN (Jan. 22, 2017).) In addition, the Presidents of Guinea and Mauritania consulted in person with Jammeh, encouraging him to leave office. The Commission of the Economic Community of West African States, known as ECOWAS, gave Jammeh a deadline to give up his position, with the threat, according to ECOWAS President Marcel A. de Souza, that if he did not leave office “troops will intervene militarily to remove him by force so we can install the new President with all his powers, in accordance with the Gambian Constitution.” (Id.)

The ECOWAS position was supported by the United Nations Security Council, which stated that it hoped the West African nations could “ensure, by political means first, respect of the will of the people” of Gambia. (Gambia: Security Council Backs Regional Efforts to Ensure Peaceful Transfer of Power to Barrow, UN NEWS CENTRE (Jan. 19, 2017).) The Security Council also asked that the Gambian military and security forces use restraint to maintain calm and said that they had a “duty and obligation to place themselves at the disposal of the democratically elected authorities.” (Id.)